Thorpe v Development Assessment Commission - [2005] SASC 440

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
THORPE v DEVELOPMENT ASSESSMENT COMMISSION
Judgment of The Honourable Justice Bleby
25 November 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONTROL OF PARTICULAR MATTERS - RURAL AND AGRICULTURAL - PARTICULAR CASES
Appeal from decision of Environment, Resources and Development Court confirming refusal of provisional Development Plan consent – Appellant owner of several rural allotments used for grazing – Proposal to re-align boundaries of two allotments to create one larger allotment to be retained for grazing and one small “rural-living” allotment to be sold as hobby farm or for similar lifestyle and amenity purposes – Creation of rural-living allotment in conflict with objectives and principles of development control in Development Plan – Whether conflict outweighed by benefits of consolidating land into proposed larger allotment – Suggested benefits, including preservation of productive agricultural land, maintenance of low-intensity farming on large holdings, promotion of sustainable grazing and sustainable primary production generally, encouraged by objectives of Development Plan – Whether creation of proposed large allotment “essential for the maintenance of sustainable grazing” – Meaning of “sustainable” grazing – Appeal dismissed.
District Council of Mount Barker Development Plan 2003, referred to.
Secombe v Development Assessment Commission [1995] EDLR 446, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"primarily", "sustainable"

THORPE v DEVELOPMENT ASSESSMENT COMMISSION
[2005] SASC 440
Land and Valuation Division
BLEBY J:
The land the subject of this appeal

The appellant carries on the business of grazing cattle on a property near Meadows in the Adelaide Hills. The property presently comprises three adjoining allotments with a total area of 159.73 hectares.
The land comprised in Certificate of Title Register Book Volume 5370 Folio 897 (Lot 2) comprises 79.24 hectares. It has a frontage on its north-eastern boundary to the Kangarilla-Meadows Road of approximately 324 metres. It is irregularly shaped extending initially in a southerly direction from the Kangarilla‑Meadows Road and a westerly direction, with part of its western boundary being along Mallawa Road. Mallawa Road travels north from a point on the western boundary of Lot 2 until it intersects with the Kangarilla‑Meadows Road. Lot 2 is owned by the appellant as to two thirds, and by his mother, Olive Alberta Thorpe, as to one third.
Adjoining Lot 2 on the southern portion of its western boundary and on the western portion of its southern boundary is the land comprised in Certificate of Title Register Book Volume 5370 Folio 822 (Lot 230) of an area of 37.94 hectares. The northern boundary of Lot 230 is bounded by a public road which joins Mallawa Road at its southern extremity. Lot 230 is also irregularly shaped. Lot 230 is owned by the appellant solely.
The third allotment is the land comprised in Certificate of Title Register Book Volume 5410 Folio 450 (Lot 229). Lot 229 comprises 47.55 hectares and adjoins Lot 2 on its northern boundary. It is bounded on the west by Mallawa Road and on the north‑east by the Kangarilla‑Meadows Road. It shares portion of its eastern boundary with Lot 2. It is owned by the appellant.
But for three smaller allotments which appear to have been subdivided at some stage from Lots 2 and 229, the frontages of Lots 2 and 229 to the Kangarilla‑Meadows Road are continuous. Those three smaller allotments comprise two adjoining allotments each of a little over 2 hectares on either side of what would otherwise be the boundary between Lots 2 and 229 and a separate allotment of 0.4 hectares surrounded, apart from its road frontage, by Lot 229. Those three allotments appear to have been created under a different planning regime.
The appellant’s house and other farm buildings are located on the western side of Lot 2 at the southern end of Mallawa Road.
In the north-eastern corner of Lot 230 there is a small timber framed, old, but habitable dwelling located just under 50 metres to the south-west of the appellant’s dwelling on Lot 2. It is presently unoccupied.
Lot 230 has road access from the southern end of Mallawa Road. It has two bores on the land providing underground water supply, and apart from the north‑eastern corner, where the house is presently located, becomes generally boggy in winter.
Lot 2, besides Mr Thorpe’s house and farm outbuildings, contains two large dams and a small dam on the watercourse within the boundaries of the proposed Lot 21. It has five useable bores and Mr Thorpe has a current permit to install another one. The main access to the property is from Mallawa Road. Lot 2 contains numerous large mature gum trees in the northern portion of the allotment along the watercourse adjacent to the present western boundary and in an area commencing approximately 80 metres from the Meadows‑Kangarilla Road. There is a further line of such trees along Meadows Creek which crosses the south‑eastern corner of Lot 2.
Both Lots 2 and 230 have a watercourse running through them. It enters Lot 2 at its most north‑westerly point and runs southwards through proposed Lot 21, enters a dam just south of the intended southern boundary of that lot and then meanders in a south‑westerly direction down to another dam located about 60 metres east of Mr Thorpe’s homestead. The watercourse then sweeps around in a more westerly direction past the homestead and the dwelling on existing Lot 230 and exits Lot 230 across its western boundary about 330 metres from its northern boundary.
The whole of the land is open and rural in character. It is gently undulating with slopes running towards the watercourses. There are numerous large eucalypts scattered across the allotments with the most significant stands in the northern portion of Lot 2 which are used by livestock as shade and shelter.
The appellant currently uses all three allotments for grazing cattle. Until approximately three years ago the land had been used by the appellant as a dairy farm. However, he switched to grazing when his dairy business became unprofitable.
Relevant Development Plan provisions
The land is subject to the Development Plan for the District Council of Mount Barker. It is located with the Rural Watershed Protection Zone. The first three objectives of that zone are as follows:
General
Objective 1:       A zone primarily for low-intensity farming on large holdings which does not pollute surface or underground water resources.
Objective 2:       The maintenance of a pleasant, attractive rural landscape characterized by verdant undulating pasture lands, dotted with clumps of large majestic gum trees with the occasional cluster of farm buildings.
Mount Lofty Ranges region
Objective 3:       The maintenance and enhancement of the natural resources of the Mount Lofty Ranges region.
The relevant principles of development control applicable to that zone are as follows:
General
1Development within the Mount Lofty Ranges region should be compatible with its use as a water catchment and storage area, and with its values as an area of agricultural production and scenic quality.
2Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.
General (Watershed)
…
4 Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.
5 Activities which produce strong organic, chemical, or other intractable wastes, should not be established in the Mount Lofty Ranges watershed.
…
7 Land should not be divided, nor allotment boundaries re-arranged in such a way   that development of the resulting allotments in accordance with the objectives and principles of development control would result in a greater risk of pollution of surface or underground waters than would development of the existing allotments.
8 Land division may be undertaken in the Mount Lofty Ranges watershed where no additional allotment or allotments are created and the purpose of the plan of division is to:
(a)     provide for a minor re-adjustment of allotment boundaries in order to correct an anomaly in the placement of those boundaries with respect to the location of existing buildings and structures; and
(b)     provide for a minor re-adjustment of allotment boundaries in order to improve the management of the land for the purpose of primary production and/or the conservation of its natural features.
Form of Development
9Development should primarily be limited to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed low intensity agricultural activities compatible with the water catchment function of the zone.
10 Development should take place on land which is suitable for the intended use of that land having regard to the location and condition of that land and the objectives for the zone in which it is located.
11 Development should take place in a manner which will not interfere with the effective and proper use of other land in the vicinity and which will not prevent the attainment of the objectives for that other land.
…
18 Land should not be divided, nor allotment boundaries re-arranged, in such a way that development of the resulting allotments in accordance with the objectives and principles of development control would result in a greater risk of pollution of surface or underground waters than would development of the existing allotments.
Principles 103 to 110 inclusive have particular reference to land division. Principle 103 repeats the substance of Principle 18. Other relevant principles in that group include:
108 No land division should take place which may lead to or result in the over-exploitation or pollution of a water resource.
110 Land division in rural areas should not occur where the proposed or potential use is liable to:
(a) result in the pollution of water resources; or
(b) cause the loss of productive agricultural land.
Principles relating to rural development include the following:
111 Rural areas should be retained primarily for horticultural, agricultural, pastoral and forestry purposes and other uses compatible with maintaining rural productivity.
112 Development should ensure that genuine agricultural activities are not prejudiced.
…
114Land which is particularly suitable for agriculture, including viticulture and horticulture, should be used or remain available for such agricultural purposes.
115 Development which would remove productive land from agriculture or diminish its overall productivity for primary production, should not be undertaken unless the land is required for essential public purposes.
Objectives applicable to the whole of the area of the District Council of Mount Barker include:
Rural Areas
Objective 59:     Conservation and preservation of the attractive open rural character of the district.
Objective 60:     Productive agricultural land protected from conversion to non-productive or noncompatible uses.
Objective 61:     The retention of rural areas primarily for agricultural, pastoral and forestry purposes, and the maintenance of the natural character and beauty of such areas.
The commentary on those objectives provides:
Pressures for the division of rural land are likely to accelerate because of the commuting possibilities that the Mount Lofty Ranges and other near-metropolitan areas offer to people who work in the metropolitan area. The removal of primary production from rural areas places greater dependence upon the diminishing fertile areas. It is in the community interest that as much agricultural land as possible be retained in primary production. The region contains some of the best agricultural land in the State and is ideally situated to serve the food requirements of the metropolitan area.
The protection of the natural beauty, agricultural land and water resources, should remain the overriding consideration governing decisions relating to development of rural land in the outer metropolitan area.
Thus, it can be seen that throughout the relevant objectives and principles, there is a strong emphasis on the preservation of agricultural land and the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities.
Application for provisional Development Plan consent
The appellant and his mother applied to the respondent for provisional Development Plan consent to create one new proposed allotment out of Lot 2 (proposed allotment 21) having a frontage to the Meadows-Kangarilla Road and adjoining one of the existing 2 hectare allotments on that allotment’s eastern boundary. As finally amended before the Environment Resources and Development Court (the Environment Court), proposed allotment 21 was intended to have an area of 2.88 hectares with a frontage of 161.65 metres to the Meadows‑Kangarilla Road, leaving the balance of Lot 2 with a frontage of 162.14 metres to the Meadows‑Kangarilla Road. At the same time it was proposed that allotment 230 be amalgamated with the balance of Lot 2 to form a new proposed allotment 20. On that basis proposed allotment 20 would contain 109.20 hectares. It is sometimes referred to in papers associated with the application as containing approximately 115 hectares. Given that the total area of Lots 2 and 230 is 112.18 hectares that difference was never explained. However, for present purposes the difference is immaterial.
The appellant was prepared to submit to a condition that the dwelling on Lot 230 be demolished.
The essence of the proposal was to re-align the combined boundaries of Lots 2 and 230 to create one smaller allotment of less than 3 hectares and one larger allotment in the vicinity of 110 hectares. The total number of allotments would remain the same, as would the total number of houses, assuming a dwelling were to be erected on proposed Lot 21. Lot 229 was not affected by the proposal.
It is clear from the appellant’s evidence before the Environment Court that the appellant wished to sell proposed allotment 21 in order to reduce the amount of debt he was carrying in respect of his grazing operations. His evidence was that, if he was unable to re-subdivide the land in the manner proposed, he might be forced to sell Lot 230 for the purpose of reducing his debt. That would be unattractive to him because he would lose 37.94 hectares of grazing land, rather than 2.88 hectares, and his cattle yards and loading facilities would have to be moved from Lot 230 to somewhere else on what is presently Lot 2.
Under the appellant’s proposal, Lot 21 would be sold to a hobby farmer or similar person seeking to purchase rural land for recreational or lifestyle reasons. The size of proposed Lot 21 makes it too small for any type of commercial agriculture. On the existing adjacent allotment is a house, and the current owners keep two horses on the land. Previously it was used for breeding ponies, and at one stage the land had five cows grazing on it. The appellant gave evidence that he expects that proposed Lot 21 would be put to similar use.
On 22 April 2004 the Development Assessment Commission refused provisional Development Plan consent and hence development approval for the proposal. The reasons for refusal were as follows:
The proposal:
·    is not a minor re-adjustment in order to improve the management of the land for the purpose of primary production and/or the conservation of its natural features. Nor is it to correct an anomaly (PDC 8);
·    is not essential for the maintenance of sustainable grazing, commercial forestry and mixed low intensity agricultural activities (PDC 9);
·    has the potential to interfere with the effective and proper use of other land in the vicinity and may prejudice genuine agricultural activities (PDC 11, 112 and 115);
·    is not primarily for low‑intensity farming and may create the potential for a high intensity activity (Objective 1);
·    does not maintain nor enhance the rural landscape or natural resources of the Mount Lofty Ranges (Objectives 2 & 3).
The appeal to the Environment Court
The appellant and his mother appealed to the Environment Court, and on 4 April 2005 that Court, comprised of a single Commissioner, dismissed the appeal. The Commissioner’s decision is perhaps best summarised in the following paragraph:
Having regard to all the evidence, it would seem that there is no reason to assume that rejection of the subject proposal would result in the loss of Lot 230 (or any other part of the Appellant’s land) from primary production, albeit there was a possibility that Lot 230 might be purchased primarily for amenity reasons. Conversely, creation of proposed Lot 21 would, on the evidence, inevitably result in the loss of that land to primary production, it being of a size consistent with rural living use. Mr K Gerner, a qualified and experienced planner who gave evidence in the Respondent’s case, summarised the position in his statement of evidence:
“The proposed land division is a form of development which cannot be considered as an initiative primarily for low-density farming. Conversely it proposes the creation of a rural living size allotment which has the potential to impact the rural landscape, to some degree, by increasing the intensity of land use in an area where the policies envisage development of a less intense nature. Such intensification would come in the form of a new dwelling, other structures and hobby farm activity on a holding which is relatively small in size, when compared to most others in the local area.
Creation of rural living allotments in this zone is not envisaged and other more suitable locations exist within the Council area. In particular the policies in Policy Areas 5 and 6 of the Rural Living Zone in the District Council Mount Barker Development Plan specifically encourage creation of lots in the vicinity of 2 hectares.”
The Commissioner referred particularly to Zone Principle 115, noted that the proposed land division was not of a kind contemplated by Zone Principle 8 and concluded that it was in conflict with Zone Objectives 1 and 5 and Principles 1, 2, 4, 8, 9, 111, 112, 114 and 115 and Council Wide Objectives 59, 60 and Principle 4.
As a significant part of the evidence before the Commissioner was directed to the question of water pollution, the Commissioner then addressed, by way of addendum, the evidence on that topic and found it “somewhat inconclusive, given evidence that the watercourse was presently polluted by cattle”. If the refusal were founded solely on that ground he considered that the evidence did not provide a sufficient basis for refusing consent solely on that ground.
In a similar manner the Commissioner also addressed the question of possible land use conflict both between the owners of proposed Lot 21 and the continuing agricultural activities on proposed Lot 20 and also, if Lot 230 were sold, a possible conflict between the occupiers of the house on Lot 230 and the appellant’s farming activities nearby on Lot 2. While he considered that there was less likelihood of Lot 230 being purchased for lifestyle reasons, and while the likelihood of nuisance complaints arising from the creation of proposed Lot 21 would not, in the absence of other material conflicts with the Development Plan, be conclusive, the Commissioner formed the view that the proposal conflicted with Zone Principles 11 and 112.

The appellant now appeals to this Court pursuant to s 30 of the Environment, Resources and Development Court Act 1993. Why his mother is not a party to the appeal was not explained. That might present a difficulty if the outcome of this appeal were to result in provisional Development Plan consent, as Mrs Thorpe is a part owner of Lot 2. However, in the result, that difficulty does not arise.
Evidence before the Environment Court
It was not disputed that under the appellant’s proposal, proposed Lot 21 would be lost to primary production and its creation would conflict with the objectives and principles outlined above. It would almost certainly become a rural living allotment. While there was agreement that that proposed Lot 21 is eminently suited at present for grazing purposes, there was evidence that the soil type and climate rendered it unsuitable for perennial root crops such as vines and fruit trees, and some forestry species, although it could be used for summer growing annual horticultural crops, such as strawberries. Its most likely use was as a rural living allotment, with maybe limited grazing activities to control grass and weed growth. Such uses would not be consistent, however, with Council Wide Objectives 59, 60 and 61, Zone Objectives 1, 2 and 3 and Zone Principles 1, 2, 9, 18, 103, 111 and 115. This was one of the respondent’s principal arguments both before the Environment Court and on this appeal.
On the other hand, the appellant suggested that the consolidation of most of Lot 2 with Lot 230 would create a single allotment of a size that would help to preserve it as productive agricultural land whereas, if Lot 230 were to be sold, that would be less likely. He argued that Lot 230 was of a size that may well attract a rural lifestyle purchaser who would not put it to its highest and best use of grazing. It was said that while the creation of Lot 21 would remove 2.88 hectares of land from primary production, the overall proposal and creation of the larger Lot 20 would further the objectives and principles contained in the Development Plan by encouraging the maintenance of low intensity farming on large holdings (Zone Objective 1), by promoting sustainable grazing (Zone Principles 2, 4 and 9) and by ensuring the long term sustainability of primary production in the area (Zone Objective 5). On the appellant’s case, although a small parcel of productive agricultural land would be removed from primary production, the size of proposed Lot 20 would make it unattractive to buyers seeking to purchase land for amenity purposes, and this would ensure that the land remains in commercial farming use into the future (Council Objective 61). The loss of 2.88 hectares would not diminish the overall productivity of the land.
The likelihood of Lot 230, if it were sold, being purchased by a lifestyle purchaser was the view expressed by Mr Batge, a planning expert called in the Environment Court by the appellant. He based that view on the land’s proximity to Adelaide and the fact that the smaller a rural allotment, the higher the price per unit area is likely to be paid, to a point where it becomes uneconomic to use the land for commercially sustainable grazing.
Against that, however, the appellant, in his evidence before the Environment Court, did not suggest that it was more likely that a lifestyle purchaser would purchase Lot 230. In his evidence he was more driven by the economic needs to reduce his borrowings while retaining as much of his land as possible for the purpose of his business.
Mr Drew, an agricultural economist and agribusiness consultant, also called by the appellant, agreed that, if Lot 230 were sold, there was no certainty that it would be purchased for amenity purposes. He also agreed that the proposed land division was not essential to the maintenance of a sustainable grazing enterprise. He agreed with Mr Hughes, called by the respondent, that the proposed configuration offered no improvement for purposes of primary production, but he did not entirely agree that the boundary adjustment would add no value as an agricultural venture. That is because it would offer more freedom to re‑organise fencing of paddocks in accordance with desirable grazing practices rather than according to existing allotment boundaries. He considered that separate management of Lots 2 and 230 would be undesirable because of the proximity of the existing houses and consequent possible nuisance interference, and the possibility of less sustainable environmental management of the two allotments, reducing the scale of operations and increasing pressure on viability and risk of over‑stocking. He agreed that the most suitable enterprise for conducting on both present allotments is the grazing of cattle.
Mr Hughes is a senior land management consultant with Rural Solutions SA, an agency of the Departments of Primary Industries and Resources SA and Water, Land and Biodiversity Conservation. He considered that the soil type and frost propensity rendered the land only marginally suitable for perennial crops requiring intensive management. If Lots 2 and 230 were in separate ownership, there was a small risk that one or the other may not be used for grazing but for revegetation or parkland and that that risk was diminished if there were one larger allotment. However, he considered that the proposal would offer no improvement for the purpose of primary production. He observed that most agricultural landholders have more than one title. It was not essential for the maintenance of sustainable grazing and would add no value to the land as an agricultural venture. He considered that the larger allotment would have very little impact on existing agricultural uses and would not prejudice general agricultural activities in the area other than on proposed Lot 21. He considered that there would be a slightly greater ability for the land to be used for general agricultural activities.
Mr Gerner, an urban and regional planner called by the respondent, considered that the proposed boundary realignment, while it may be advantageous in some circumstances, was not essential for the maintenance of sustainable grazing. That view was informed in part by Mr Hughes’ view of the likely uses of the land in whatever configuration the allotments were ultimately arranged. Mr Gerner’s main objection related to the potential to interfere with the effective and proper use of proposed Lot 20 and the prejudice to general agricultural activities as a result of nuisance complaints on the part of new land owners moving onto rural living sized allotments.
Finally, Mr Thompson, an environment protection officer for the South Australian Environment Protection Authority, gave evidence as to the likely polluting effects of the proposal. He had analysed the soil type on proposed Lot 21 which had poor subsoil drainage. He considered that there was greater potential for pollution with a house and associated activity on proposed Lot 21 than if there were a house on and separate ownership of Lot 230. While domestic waste might be satisfactorily accommodated by an aerobic waste water system, other activities likely to be carried on on proposed Lot 21 would be likely to have water polluting effects with run off from that allotment. The less intensive use of Lot 230 as a separate allotment would not contribute to such effects in the same way.
I have only referred in briefest terms to the general thrust of the evidence of the several witnesses, as that is all that is necessary for present purposes. The totality of the evidence as to the probable future use of Lot 230, should it be owned separately from any adjoining land, suggests that it may not be used by itself for commercially viable primary production. Given the soil type, location and contours of the land there are practical limits on its use for agricultural purposes other than grazing. There is, of course, a risk that Lot 230, if sold, could be purchased by a person who wishes to make no agricultural use of the land, but its use for agistment, hobby farm or semi-commercial use such as breeding or the grazing of horses or a small herd of cattle seem possible outcomes.
Consideration of the appeal
While economic necessity may be the appellant’s motive for implementing the proposal, it cannot be a reason for consenting to it. That must be justified on proper planning principles and in accordance with the requirements of the Mount Barker Development Plan.
It is also apparent that the proposal does not comply with the requirements of Zone Principle 8. However, that principle is permissive. It states the limited circumstances under which land division may be undertaken. That is not to say that land division which does not meet the requirements of Principle 8 may not be undertaken at all. Such a proposal will need to be judged against the other relevant objectives and principles in the Development Plan.
Zone Principles 2, 4 and 9 are obviously of major significance in consideration of the present application. The juxtaposition of “primarily” with the phrase “be limited to” in each of those zone principles is curious. The word “primarily” in that context, with the use of the word “should”, seems to add little to the effect of these principles. Without it, the principles would have the same force, the word “should” allowing for the possibility of some exceptions. It appears that it may possibly be a mere repetition of the same adverb in Council Wide Objective 61 and Zone Objective 1. When read in the context of those objectives, Zone Principles 2, 4 and 9 make it clear that, in considering development applications in this zone, a strong priority should be given to that which is essential for the maintenance of sustainable grazing, commercial forestry and mixed agricultural activities. That does not mean that development which may be inconsistent with those principles can never be approved in exceptional circumstances. The principles themselves contemplate that. Principle 115 provides one such exception where land is required for essential public purposes. To the extent that the use of the word “primarily” contemplates exceptions to the general principle stated, they must be justified on sound planning principles and not other irrelevant considerations.
Priority must not merely be given to the maintenance of those activities, but to that which is “essential” for the maintenance of those activities.
There is no dispute that creation of proposed Lot 21 is far from essential to the maintenance of those activities. In fact, it detracts from them. There is one other significant adverse effect of the creation of Lot 21 observed by Mr Hughes and not commented on by others or by the Commissioner. Mr Hughes said in his report:
The main effect on the wider agricultural uses in the district is on the commitment of multi‑title properties to agriculture. This may be seen by neighbours as a way of capitalising on their surplus titles so similar boundary realignment may be undertaken. In other situations the establishment of small rural living blocks would have a high risk of creating agricultural conflict.
In this situation landholders sometimes stop focussing on agricultural improvements to production, but more on land division etc resulting in the long term the agricultural use becoming threatened.
I note in this respect the decision of the Environment Court to similar effect in Secombe v Development Assessment Commission[1].
[1] [1995] EDLR 446.
What about the creation of proposed Lot 20? There was evidence from the appellant, Mr Drew, Mr Hughes and Mr Gerner on which the Commissioner could properly conclude, as he did, that the creation of proposed Lot 20 was not essential for the maintenance of those activities. There was evidence that retention of Lot 2 and Lot 230 in its present form, even under separate ownership, was likely to result in maintenance of grazing activity on the two allotments either of the same type as presently carried on by the appellant or of a different type or in the maintenance of some other agricultural activity which could properly be classed as mixed agricultural activity. The likelihood of concentrated horticultural activity or other intensive uses of Lot 230 was, on the evidence, not high.
The fact that the relevant principles refer to the maintenance of “sustainable” grazing activity does not necessarily require the continued common ownership of Lots 2 and 230. I have little doubt that the sale to a third party of any one of the three adjoining allotments in which the appellant has an interest would render his business less economic, perhaps uneconomic. That does not mean that separate ownership renders the desired activity unsustainable or, to put it in the language of the relevant principles, that common ownership is essential for the maintenance of grazing or other desirable agricultural activities encouraged by the Development Plan. Sustainable activity does not merely mean an economically self-sustainable activity. Economics of the activity will be relevant but not necessarily determinative. An activity may be sustainable if carried on in conjunction with other economic activity not necessarily conducted on the land. Whatever the activity is, it must be sustainable by the land itself when managed in accordance with reasonable and prudent management practices appropriate to the land in question, in order to conserve its resource as productive land. “Sustainable agriculture” is defined as “farming systems which meet the needs of society now and into the future by maintaining or improving profitable food and fibre production while conserving natural resources”.[2]
[2] The Macquarie Concise Dictionary (Third Edition).
There was therefore compelling evidence before the Environment Court that the creation of proposed Lot 21 was contrary to the relevant zone objectives and principles. There was evidence that creation of proposed Lot 20 was neither contrary to nor required by the relevant principles. Because of the non‑conforming nature of proposed Lot 21, there was therefore justification for the conclusion reached by the Environment Court that the appeal against the respondent’s refusal to grant consent to the application should be dismissed.
Had the case in favour of the creation of proposed Lot 20 been stronger so as to balance evenly the case against the creation of proposed Lot 21, I consider that the application would still have to be refused.
Mr Thompson was the only witness whose expertise and evidence were directed towards the question of water pollution as a result of the proposal. I have already summarised the effect of his evidence.
There was also evidence that the watercourse was polluted to some extent by access of the appellant’s stock to it. On the appellant’s case, that would continue. However, the existence of that source of pollution is no reason to ignore another possible source.
The undisputed evidence of Mr Thompson was that the risk of pollution from the creation of Lot 21 would be greater than the risk of pollution from the sale and use of Lot 230 for purposes which included a residence. While the Commissioner found the evidence on water pollution “somewhat inconclusive”, in the light of Mr Thompson’s evidence Zone Principles 18 and 103 would require that the application be refused.
In so far as the grounds of appeal to this Court raise questions of fact I grant leave to appeal. For the reasons now given I consider that the appeal must be dismissed.